No such thing as free speech

Published in The New Zealand Herald 30 April 2018

There’s no such thing as free speech, and it’s a good thing too.

There is nothing original about that sentence. It was the title of an essay by an American legal scholar named Stanley Fish. In it he argued that speech cannot be free because it is never free of consequences and responsibilities.

He is right. For several decades, as a journalist and editor on this newspaper and later as an academic, I have championed free expression. At no stage, however, was I under any illusion that speech was entirely free of consequence and responsibility. I knew that it had limits.

That may be bad news for  Wallabies player Israel Folau who responded to a fan’s Intagram message asking about God’s plan for gay people with “Hell…unless they repent their sins and turn to God”.

It may also be bad news for Auckland local board member Derek Battersby who used his social media page to rail against Asian drivers, celebrate a fatal police shooting, and call Minister for Women Julie Anne Genter a “silly b….” who should stay home and mind the kids for questioning the presence of older white males on company boards.

Battersby asserted he had every right to make such comments as “an individual” but later apologised, noting nonetheless that “free speech is my right”. Folau did not back away from his comment which, he said, reflected his firm religious belief and ‘God’s truth’.

Both reaped a whirlwind of criticism because both failed to realise the consequences and responsibilities that placed limits on their right to express themselves as they did.

Folau is a role model and his statement could add fuel to homophobia and have profound effects on teenagers still searching for their sexual identity. Battersby is a representative of the public – not merely those who voted him onto the Whau Local Board – and his comments affect perceptions of his ability to fulfil that role.

Both men are entitled to their opinions and both could have publicly voiced those opinions in a manner that did not cross the line between acceptable and unacceptable speech.

Both made the mistake of assuming they had a monopoly on the truth when they were simply expressing a point of view.

Folau’s religious belief in truth ‘revealed’ by God is not the same thing as secular knowledge. As British contemporary philosopher Julian Baggini says in A Short History of Truth,it exists on another plane. Battersby’s derision of Genter was based on the Trumpish conceit that I-believe-it-so-it-must-be-the-truth and his view on Asian drivers suggests prejudice rather than fact.

Both men also failed to understand that position is power and that their words drew their significance from that fact. That so, they should not have succumbed to the temptation to let language run away with itself.

Both felt they had an inalienable right to express what they said – in the terms they used – but they were misguided.

People do society no favours in misusing speech rights by claiming free rein. Unfettered free speech is a shelter for the unworthy.

John Milton in his celebrated 17thcentury call for an end to press licensing (censorship) recognised limits to free expression, although his advocacy of “fire and the executioner” as a remedy for mischievous and libellous works was a little excessive and we would frown on his intolerance of “Popery”.

Rights advocates throughout subsequent history have continued to recognise limits. In the 19thcentury John Stuart Mill recognised the concept of harm and this has been a keystone in considering where the limits to free speech should lie.  As an editor, I found a useful guide in the question “what harm will be done if we publish?”

That is not the same as asking who might be offended by what we publish. It’s a sad fact, however, that too many see the brick wall surrounding free speech being erected at the point where what you say offends me. ‘Offence’ is too loose a term to be usefully employed in determining the limits of free speech. Our feelings may be affected by opinions contrary to our own but they don’t harm us.

The New Zealand-born legal philosopher Jeremy Waldron has identified a useful marker to determine when offence becomes harm and that is where it is an assault on dignity. The ordinary dignity of an individual, Waldron says, focuses on the ways his or her status is affirmed and upheld.

Folau’s Instagram post was one of those assaults on dignity and therefore it falls outside the bounds that Stanley Fish says society has built to define acceptable speech. Battersby’s assertion that Asian drivers should have special number plates on their vehicles is an assault on the dignity of that broad ethnic group and it, too, went out of bounds.

I cannot defend what they said but I do defend their right to express an opinion on the subjects in question. They could have done some without going beyond what society will tolerate.

Our language is rich enough to allow us to express ourselves in ways that advance our views while staying within the bounds that Stanley Fish says recognise society’s acceptance of ideological pressures and exclusions.

Folau’s response on Instagram could have said that, while gays are widely accepted in the community, his church holds to the belief that homosexuality is a sin. He would have conceded the separation of religious and secular ‘truth’. Battersby could have countered Julie Ann Genter’s call for board diversity by saying that older directors had a valuable body of knowledge that, in his opinion, should not be lost. He could have raised the idea of special number plates for impaired drivers without playing a spurious racial card.

That, of course, would have required a little more thought than is usually employed in the instantly-gratifying world of social media.

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